States test abortion limits

On Tuesday, the Oklahoma Senate passed one of the country’s most restrictive abortion laws, requiring that women seeking an abortion have a viewable ultrasound and listen to a detailed description of the fetus prior to the procedure.

The law came on the heels of a stringent Nebraska measure, passed two weeks earlier, banning abortion at 20 weeks gestation.

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Taken together, the two new laws represent some of the most aggressive abortion legislation passed in recent years, leaving some to wonder: are these new laws isolated incidents or signs of a larger shift?

“On the one hand, they’re part of an onslaught of restrictions that we see constantly,” says Nancy Northup, President of the Center for Reproductive Rights, of the two new laws. “But, that being said, these are both going farther that what we’ve seen before.” This year alone, the Center has filed lawsuits against six abortion-related laws—two in Oklahoma, two in Alaska, and others in North Dakota and Arizona—a caseload that Northup describes as “higher than we’ve seen since the late 1990s. It’s a total uptick.” They’re currently tracking about 500 state-level bills that would curtail abortion rights.

The new Oklahoma law requires a woman to have an ultrasound — with the monitor in her view, although she can avert her eyes — and listen to a detailed description of the fetus, including information on any visible limbs or vital organs, at least one hour before having an abortion.

Fourteen other states do require the provision of an ultrasound prior to abortion, but Oklahoma goes further by requiring both the description of the fetus and that the ultrasound monitor be in sight. Oklahoma’s more restrictive law passed despite objections from Gov. Brad Henry (D), who had previously vetoed the bill.

The Nebraska law bans abortion after 20 weeks gestation on the basis that the fetus could feel pain. When it takes effect in October, the new regulation will likely be challenged as unconstitutional, largely because it bans pre-viability abortions.

Numerous Supreme Court cases, including Roe v. Wade, identify viability as the point at which states can ban abortion, with exceptions for the life or health of the mother. Prior to viability, however, states can regulate, but not ban, the procedure.

In a recent letter to the Nebraska Senate’s Judiciary Committee, former Solicitor General Walter Dellinger charges that the law unconstitutionally violates a woman’s “right to choose a pre-viability abortion without undue interference from the government.”